Can an Arkansas public school require students to pay for private lessons or summer camps as a condition of participating in extracurriculars or graded courses?

Plain-English summary

State Representative Andy Mayberry asked Attorney General Leslie Rutledge in 2018 whether Arkansas public schools could require students to pay for private lessons, summer camps, or transportation as a condition of participating in extracurricular or curricular activities. The questions covered four scenarios: (1) requiring private lessons at a specific business, (2) requiring summer-camp attendance, (2B) requiring out-of-state transportation to camp, and (3) whether the answer changes if the activity occurs during the school day or earns physical-education credit toward graduation.

The AG declined to give yes-or-no answers because the legality of any specific fee depends on facts the AG could not verify in the abstract. But the opinion laid out the legal framework. The Arkansas Constitution's free public schools clause requires the state to "ever maintain a general, suitable and efficient system of free public schools." The Arkansas Supreme Court has held that registration and tuition fees for attending public schools are unlawful (Dowell v. Sch. Dist. No. 1; Special School District No. 65 v. Bangs). The AG read those holdings to mean that schools cannot impose fees that condition a student's access to goods or services that are necessary and integral parts of the free public school system.

Applying that framework, the AG drew a working line. Fees for elective, non-credit activities are less constitutionally suspect, and the opinion cites an AAA rule contemplating paid camps and clinics outside the sport season. The AG did not decide whether the private-lesson or summer-camp fees in the request were lawful. A required fee cannot infringe on access to a course offered for credit toward graduation; fees for courses required for graduation are constitutionally suspect. Whether a required lesson or camp fee infringes on free public education depends on the particular course or activity and its effect on access to free education.

The AG also flagged a key statutory cross-current. Ark. Code Ann. § 6-16-137(h) says that organized physical activity courses are "not a requirement for an adequate education" and "shall not be considered a core academic requirement." But the Arkansas Department of Education's Standards for Accreditation explicitly require students to earn 1½ units of "Health and Safety Education and Physical Education" to graduate from grades 9-12. So PE sits in an awkward middle ground: not a "core academic requirement" by statute, but functionally required for graduation by ADE rule. The AG said schools must factor that ADE requirement into the fee analysis.

Transportation fees got a separate but related analysis. School districts have broad statutory discretion under Ark. Code Ann. §§ 6-19-102 and 6-12-102 to decide whether and how to transport students. That discretion implies a power to charge transportation fees. The U.S. Supreme Court upheld a transportation-fee scheme in Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988), where no suspect class was affected and the distinctions among students were not arbitrary. Equal protection and other constitutional concerns can still constrain a particular scheme, but the baseline is broad district discretion.

The AG also flagged ethical and conflict-of-interest issues when a school requires students to use a "specific private business." Under Ark. Code Ann. §§ 6-24-101 et seq., school board members, administrators, and employees have an affirmative duty to disclose any interest they have in a transaction. Footnote 2 quotes a ban on offering or giving gratuities or employment offers to school officials in connection with a public education contract or transaction.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Arkansas Constitution's free public schools clause: "The State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education." DuPree v. Alma Sch. Dist. No. 30 of Crawford Cty. treats equal access to education as foundational.

Dowell v. Sch. Dist. No. 1 and Special School District No. 65 v. Bangs hold that registration and tuition fees for attending public schools are unconstitutional. Subsequent AG opinions extend that holding: fees for required courses or required purchases (like a chemistry-class kit) are constitutionally impermissible (Op. Att'y Gen. 83-154); fees for non-credit driver's-education classes are permissible (Op. Att'y Gen. 90-227); fees for required elective courses where the elective is required to graduate are constitutionally suspect (Op. Att'y Gen. 91-219).

Other-state authority cited approvingly: East Jackson Public Schools (Mich. Ct. App.) and Granger (Mont.) on whether interscholastic athletics are "integral" to the free school system; Kiddie Korner Day Schs. (N.C. Ct. App.) on supplemental-program fees; Norton (N.M.) on elective-course fees.

Federal IDEA carve-out: 20 U.S.C. § 1412 separately requires a "free appropriate public education" for students with disabilities, with its own legal framework. The 2018 opinion expressly does not address IDEA-specific issues.

Common questions

Can my child's school require us to pay for private golf or tennis lessons to play on the school team? The AG did not decide whether a school may require paid private lessons for team participation. Non-credit extracurricular fees are less constitutionally suspect, but the answer depends on the particular activity and its relationship to a free public education. The AAA Handbook passage concerns camps and clinics; it does not approve the proposed private-lesson requirement.

Can a school require us to pay for transportation to an out-of-state summer camp? Districts have broad discretion over transportation under Ark. Code Ann. §§ 6-19-102 and 6-12-102, and that discretion implies a power to charge fees. Kadrmas (the U.S. Supreme Court case) upheld a transportation-fee scheme. The AG's framework would scrutinize the fee under equal protection and the free-education clause where the specific facts call for it; the AG did not decide whether the proposed camp transportation charge was lawful.

Does it matter if the activity is during the regular school day? The AG said no, the analysis does not change based on when the activity happens. What matters is whether the activity is integral to the free public education system: required for graduation or otherwise a necessary and integral part of free public schools. Time-of-day is not the test.

What about physical education credit?
For physical education, Ark. Code Ann. § 6-16-137(h) says it is "not a core academic requirement," but the ADE accreditation rules require students to earn 1½ units of health and PE to graduate from grades 9-12. The AG said schools must take the ADE-graduation-requirement reality into account; the statutory "not core academic" label does not end the fee inquiry.

Is it OK for the school to require we use a specific private business? The AG did not decide whether requiring a specific business was lawful. Footnote 2 says the fee analysis is the same whether a private business offers the activity, and identifies statutory and ethical restraints. It says school officials must disclose any interest in a transaction and quotes a prohibition on gratuities and employment offers connected with public education contracts. The quoted ADE rule calls for vendor relationships to be disclosed before a contract or services begin.

Did the AG decide whether these particular private-lesson or summer-camp fees were lawful? No. The AG said the questions were factual and could not be resolved in an opinion. The inquiry depends on the particular course or activity, what the fee buys, and how the requirement affects access to free public education.

Citations

• Ark. Const. art. 14, § 1 (free public schools clause)
• Ark. Code Ann. § 6-12-102(b) (school district discretion to hire or purchase school buses)
• Ark. Code Ann. § 6-16-137 (organized physical activity courses; § 6-16-137(h) "not a core academic requirement")
• Ark. Code Ann. § 6-19-102(a) (school board authority to provide transportation "when necessary")
• Ark. Code Ann. §§ 6-24-101 et seq. (school ethics; § 6-24-112(a) gratuity prohibition)
• 20 U.S.C. § 1412 (federal IDEA "free appropriate public education")
• DuPree v. Alma Sch. Dist. No. 30 of Crawford Cty., 279 Ark. 340, 651 S.W.2d 90 (1983)
• Dowell v. Sch. Dist. No. 1, 220 Ark. 828, 250 S.W.2d 127 (1952)
• Special Sch. Dist. No. 65 v. Bangs, 144 Ark. 34, 221 S.W.2d 1060 (1920)
• Att'y Gen. v. East Jackson Pub. Schs., 372 N.W.2d 638 (Mich. Ct. App. 1985)
• Granger v. Cascade Cty. Sch. Dist. No. 1, 499 P.2d 780 (Mont. 1972)
• Kiddie Korner Day Schs., Inc. v. Charlotte-Mecklenburg Ed. of Educ., 285 S.E.2d 110 (N.C. Ct. App. 1981)
• Norton v. Ed. of Educ., 553 P.2d 1277 (N.M. 1976)
• Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988)
• Ops. Att'y Gen. 73-137, 83-154, 90-227, 91-219, 93-393, 96-072, 98-224, 98-276, 2000-230, 2001-098, 2013-075
• Arkansas Activities Association Handbook 2017-2018
• Arkansas Department of Education, Rules Governing Standards for Accreditation of Arkansas Public Schools and School Districts (July 2018)
• Ark. Admin. Code 005.01.2-22.00 (March 2016)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2018-030

September 11, 2018

The Honorable Andy Mayberry
State Representative
3022 East Woodson Lateral Road
Hensley, AR 72065

Dear Representative Mayberry :

This is in response to your request for an opinion on the following questions:

( 1) May a public school or school district require students who are participating in an extracurricular activity, interschool athletic program, physical activity course, or other activity to take lessons at a specific private business in order to participate, with the cost of the lessons being borne by the student?

(2) (A) May a public school or school district require students to pay for a summer camp that specializes in a certain activity relating to an extracurricular activity, interschool athletic program, physical activity course, or activity in which the student is participating, as a requirement for that participation?

(B) May a public school or school district require the student to pay for the transportation, either in-state or out-of-state, of the student to the summer camp?

(3) Would the analysis of the above questions change if:

(A) The extracurricular activity, interschool athletic program, physical activity course, or other activity is a class period during the instructional school day?

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. ARK/\N SAS 7220 1 TELEP H O N E (50 I ) 682-200 7 · FAX (50 1) 682-8084 ARKAN SASAG .GOV

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State Representative
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(B) The student is eligible under § 6-16-137 or other law to receive by his or her participation in the extracurricular activity, interschool athletic program, physical activity course, or other activity the physical education credit or other credit required for graduation?

RESPONSE

The factual nature of these questions prevents definitive resolution in an opinion from this office. I can address the general, guiding legal framework, which I believe centers on whether requiring payment for the activity or service compromises students' right under the Arkansas Constitution to a free public education. 1 But I must emphasize that any questions concerning what I will refer to as public school "activity fees" are decidedly factual and ultimately cannot be satisfactorily addressed in the abstract.

DISCUSSION

Question 1: May a public school or school district require students who are participating in an extracurricular activity, interschool athletic program, physical activity course, or other activity to take lessons at a specific private business in order to participate, with the cost of the lessons being borne by the student? Question 2A: May a public school or school district require students to pay for a summer camp that specializes in a certain activity relating to an extracurricular activity, interschool athletic program, physical activity course, or activity in which the student is participating, as a requirement for that participation?

I have grouped these questions together because they turn on the same inquiry 2 regarding students' right to free public schools.

1
Because your questions are general in nature, I have limited my analysis to Arkansas law relative to public school students generally. I have not undertaken a separate analysis of, and this opinion should not be read to address, the "free appropriate public education" required by the federal Individuals with Disabilities Education Act. See 20 U.S.C. § 1412.

2
I believe the analysis is the same regardless of whether a specific, private business offers the course or activity, but certain statutory and ethical restraints should be noted in this regard. School board members, administrators, and employees have an affirmative obligation under Arkansas law to disclose any interest they may have in a given transaction. See Ark. Code Ann.

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State Representative
Opinion No. 2018-030
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The imposition of school activity fees is bounded by the principle that "the State shall ever maintain a general, suitable and efficient system of free public schools 3
" School districts, therefore, are generally prohibited from charging fees that might compromise students' equal access to this system of "free public schools." The Arkansas Supreme Court has held in this regard that registration or tuition fees for attending public schools are unlawful. 4 I believe it reasonably follows from the Court's pronouncement regarding registration or tuition fees that the right to a free public education includes the right to goods or services that are necessary and integral parts of the required system of free public schools. 5

Determining whether an activity fee compromises the right to free public schools requires an independent, factual inquiry into the fee and the particular course, activity, or service for which the fee is being charged. Factual inquiries of this sort are outside the ordinary scope of an opinion from this office. However, I can identify the criteria often used to determine the legality of particular fees.

Although there are no Arkansas appellate court cases regarding the constitutionality of activity fees, there is support in other jurisdictions for focusing

§§ 6-24-101 et seq. (Repl. 2013 & Supp. 2017). For example, "[i]t is a breach of the ethical standards for any person to offer, give, or agree to give any board member, administrator, or employee a gratuity or an offer of employment in connection with any contract or transaction of a public educational entity." Id. at§ 6-24-112(a) (Rep!. 2013). See also Ark. Dept. of Ed. Rules and Regulations Governing Ethical Guidelines and Prohibitions for Educational Administrators, Employees, Board Members and Other Parties, Ark. Admin. Code 005.01.2-22.00, March 2016 (providing that "board members, administrators and employees of [a school] district have an affirmative obligation ... to disclose relationships with vendors before the district enters into the contract or before services are performed .... "). 3 Ark. Const., art. 14, § 1. The Arkansas Supreme Court has stated that it "believe[s] the right to equal education is basic to our society .... [and] 'is the very essence and foundation of a civilized culture .... '" DuPree v. Alma Sch. Dist. No. 30 of Crawford Cty., 279 Ark. 340, 346, 651 S.W.2d 90, 93 (1983) (internal citation omitted). 4 Dowell v. Sch. Dist. No. 1, 220 Ark. 828, 250 S.W.2d 127 (1952); Special Sch. Dist. No. 65 v. Bangs, 144 Ark. 34, 221 S.W.2d 1060 (1920). 5 See Op. Att'y Gen. 2013-075 (opining that fees charged for untimely summer-school registration might pass constitutional muster so long as they do not foreclose equal access to a free public education). This does not mean, however, that citizens must be spared all expenses incidental to public school attendance. See, e.g., Ops. Att'y Gen. 2000-230 (opining that parents can be required to provide basic supplies for a student, such as pencils, pens, and paper, as well as additional incidental expenses of education); 98-224 (finding that the cost of a school uniform is an "incidental" expense that may properly be charged to a parent).

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State Representative
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the inquiry on whether the course, activity, or service is an integral part of the free school system. 6 And other jurisdictions have held that a required fee cannot infringe on a student's right to receive instruction in a course offered for credit towards graduation. 7 It is similarly untenable to charge tuition or fees for an elective course, at least to the extent that the completion of the elective course is a requirement to graduate from high school. 8

By contrast, fees for elective, non-credit courses or activities are less constitutionally suspect. Indeed, the fact that a course or activity does not offer credit usually indicates that it is not a necessary part of the system of free public schools. 9 Indeed, requiring fees as a condition to participate is certainly

6
See, e.g., Att'y Gen. v. East Jackson Pub. Schs., 372 N.W.2d 638, 639 (Mich. Ct. App. 1985) (opining that fees to participate in interscholastic athletics are lawful because "interscholastic athletics [are not] a necessary element of any school's activity," nor are these activities "an integral fundamental part of the education process .... "); Granger v. Cascade Cty. Sch. Dist. No. 1, 499 P.2d 780, 786 (Mont. 1972) (fees are not valid if they are part of a course or activity reasonably related to a recognized academic or educational goal of a particular school).

7
Kiddie Korner Day Schs., Inc. v. Charlotte-Mecklenburg Ed. of Educ., 285 S.E.2d 110 (N .C. Ct. App. 1981) (holding that fees to cover the cost of a supplemental, after-school program are constitutional, because the enrolled students did not pay tuition for their basic education, but only paid fees to cover the costs of the supplemental educational experience); Norton v. Ed. of Educ., 553 P.2d 1277 (N.M. 1976) (holding that the imposition of fees for "elective courses"-as defined by the state Board of Education-but not for required courses is constitutional); Accord Ops. Att'y Gen. 90-227 (finding that it is constitutionally permissible to charge fees for non- credit driver's education classes) and 83-154 (determining that it is constitutionally impermissible to charge fees for required courses or to require special purchases for courses such as a chemistry class). 8 See Norton, 553 P.2d at 1279. See also Op. Att'y Gen. 91-219 (opining that because some electives are required for graduation, it is constitutionally suspect to charge fees for certain required elective courses). The question whether a particular course is a requirement for graduation requires a case by case determination. For example, Ark. Code Ann. § 6-16-13 7(h) (Rep!. 2013) provides that "organized physical activity courses as set fo11h under subsection (b) of this section are not a requirement for an adequate education and shall not be considered a core academic requirement of the State of Arkansas or of public school districts." Section 6-16-137(b) lists a number of standards for courses students can take in order to acquire one-half unit of physical education credit required for graduation, and subsection (c) notes that a student is limited to only the one-half credit of physical education credit. 9 See East Jackson Pub. Schs., 372 N.W.2d at 640 (agreeing with an agency interpretation that fees for athletic activities are legal if the activities are extracurricular in nature, students are not required to take them, and no grade or credit is given).

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State Representative
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contemplated in some organizational rules regarding such courses and activities. 10 Because your questions are ultimately decidedly factual in nature, I cannot opine further as to the legality of a required fee for private lessons or for a summer camp. Whether mandatory costs will infringe upon a student's right to free public education depends largely upon the particular course or activity involved, and what, if any, impact that course or activity has on a student's right to receive a free education.

Question 2B: May a public school or school district require the student to pay for the transportation, either in-state or out-of-state, of the student to the summer camp?

School districts generally have broad discretion with respect to whether and how to transport students. 11 Thus, by implication, school districts have an equally broad power to impose transportation fees. 12 That power, however, may in certain contexts be limited by equal protection and other constitutional concerns. 13 But

'° For example, the Arkansas Activities Association ("AAA")--an organization that dictates rules to its voluntary school-district members regarding educational standards for student participation in AAA activities-has addressed costs associated with certain athletic camps and clinics, as well as private lessons. The AAA Handbook provides that students "may attend camps and clinics outside their chosen spo1t season ... provided ... [t]he students or their parents pay for these camps or clinics .... " Arkansas Activities Association Handbook 2017-2018, at https://members. ahsaa.org/public/userfiles/ Admin/2017-18 _AAA_Handbook.pdf (last viewed June 22, 2018).

11
See Ark. Code Ann. § 6-19-102(a) (Rep!. 2013) (stating that a school board of directors "is authorized to purchase vehicles and otherwise provide means for transporting pupils to and from school, when necessary.") and 6-12-102(b) (emphasis added) (stating that a school district "may hire or purchase school buses or other vehicles and hire persons to operate them, or make such other arrangements as it may deem best .... "). Accord Op. Att'y Gen. 96-072 (stating that the phrase "when necessary" is "indicative of the broad discretion of school districts in determining matters relating to the transportation of pupils."). See also Ops. Att'y Gen. 2001-098; 98-276. 12 See Op. Att'y Gen. 96-072. Indeed, the lack of an express legal requirement to transpo1t students likely contributes to the notion that transportation is not a "necessary and integral part" of the required system of free public schools. Id. 13 Id. (opining that "the distance from a pupil's home to the school may well be an important factor in determining the validity of a transportation scheme that draws distinctions among pupils of the same district," and also that, among other numerous potential factors, the exact amount of a transportation fee might be a consideration) (citing Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988), in which the United States Supreme Court upheld a school district's imposition of transportation fees, because there is no fundamental right to receive an education or transportation to school, and, in particular, no suspect class was affected by the school's fee scheme, and that

The Honorable Andy Mayberry
State Representative
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importantly, this, too, requires a factual analysis that is outside the scope of my opinion.

Question 3A: Would the analysis of the above questions change if: The extracurricular activity, interschool athletic program, physical activity course, or other activity is a class period during the instructional school day?

"No," in my opinion, the above analysis would not change if the course or activity occurs during the instructional school day. It is my opinion that the answer to your question is still contingent upon the status of the activity, program, or course in relation to a student's access to a "free public education," and whether a required fee will impact that right.

Question 3B: Would the analysis of the above questions change if: The student is eligible under § 6-16-137 or other law to receive by his or her participation in the extracurricular activity, interschool athletic program, physical activity course, or other activity the physical education credit or other credit required/or graduation? As explained above, the fact that a particular course is required for graduation is a factor that must be considered when assessing the legality of a fee.

You specifically reference section 6-16-13 7, which provides that students in grades nine through twelve are eligible for one-half unit of physical education credit for graduation. 14 This provision further states that "physical activity courses
[as provided in this section] are not a requirement for an adequate education and shall not be considered a core academic requirement .... " 15 Nevertheless, the Arkansas Department of Education's ("ADE") Standards for Accreditation of Arkansas Public Schools and School Districts" explicitly requires that students earn physical education credit in order to graduate. 1 Accordingly, while physical

the distinctions made to provide transportation to some, but not all, students was not arbitrary or irrational). 14 Ark. Code Ann.§ 6-16-137(c) (Repl. 2013).
15
Id. at§ 6-16-137(h).
16
See Arkansas Department of Education, "Rules Governing Standards for Accreditation of Arkansas Public Schools and School Districts," http://www.arkansased.gov/public/userfiles/ Legal/Legal Current %20 Rules/ADE282 _ Standards_for_Accredition.pdf, 282-11, (July 2018) (last accessed July 17, 2018) (listing the courses required for a student in grades nine through twelve

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State Representative
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education is statutorily "not a core academic requirement," school districts must still take into consideration the fact that ADE requires this course in order for students to graduate when assessing mandatory fees.

While your question does not list any other specific courses or activities, I believe that the above analysis would still apply. That is, if a particular course is required for a student to graduate, then it is constitutionally suspect to charge a fee for such 17 a course. Whether any other individual course fee is permissible is highly factual in nature, and thus I am unable to opine further in the context of an Attorney General's opinion. 18

Sincerely,

~-~~
LESLIE RUTLEDGE
Attorney General

to graduate, including I Yi units of "Health and Safety Education and Physical Education" for students in grades 9-12 in order to graduate). 17 See supra note 6. See also Op. Att'y Gen . 73-137 (noting that the Constitution, by requiring "free public schools," necessarily prohibits public schools from requiring payment of any fee that is a prerequisite to a student taking and receiving credit for a course required for graduation). 18 See Op. Att'y Gen . 93-393 (noting that all of the facts surrounding a pai1icular course offering must be considered, "with the ultimate inquiry focused on whether the course is part of the ' general, suitable and efficient system of free public schools in Arkansas ." ').